A bill passed in the Vermont House on Tuesday would create a mask policy for state and local law enforcement officers — but not for federal agents working in the state despite a push by some Democrats to include them.
By a vote of 102-39, the House-passed version of S.208 sidesteps a legal battle over whether Vermont has the right to regulate the conduct of federal agents.
The bill would merely require statewide “identification standards” for Vermont law enforcement agencies. An advisory board would write rules about the use of “facial coverings” such as balaclavas and ski masks. The bill defines the coverings as any “opaque mask, garment, disguise, or other item that conceals or obscures the facial identity of an individual.”
The decision to not regulate federal agents was a controversial one given the high-profile role masked Immigration and Customs Enforcement agents played during a March 11 raid on a South Burlington home.
Rep. Karen Dolan (D-Essex Junction) said the bill “takes a measured approach toward advancing transparency and public trust in Vermont law enforcement interactions.”
She noted that a recent federal court decision in the Ninth Circuit Court of Appeals that struck down a California mask law “underscored the complexity of applying state requirements to federal officers.”
At that point, a man with a sign in the rear of the chamber stood up and started yelling: “Failing to umask ICE means complying in advance!”
After he was led from the chamber, a number of Democrats seemed to agree. Many tried in vain to revert the bill to the original Senate version, which covered federal agents with exceptions for undercover, tactical work and cold weather.
Rep. Jubilee McGill (D-Bridport) said lawmakers should stand up for the principle that “people exercising law enforcement power in our community should not do so anonymously.” She said the issue was not about politics but about doing the right thing.
“It is about whether we still believe that government power in a democracy must remain visible, identified and accountable to the public,” she said.
Rep. Conor Casey (D-Montpelier) said Vermonters are deeply disturbed by the tactics of masked federal agents, and the moment called for lawmakers to show some political courage.
“We cannot call ourselves a Brave Little State while retreating from difficult issues because litigation may follow,” Casey declared.
Some argued that Vermont lawmakers should do what their constituents want and let the courts figure it out.
Rep. Martin LaLonde (D-South Burlington), who chairs the House Judiciary Committee, disagreed with that approach.
He said in an interview that his committee took a hard look at the interplay between federal and state power, and it became pretty clear to him that the Second District Court of Appeals, which serves Vermont, would likely find the bill unconstitutional.
“I want Vermonters to believe that we are going to try to follow the Constitution,” he said.
Ultimately, 65 members voted in favor of adding federal agents back into the bill, with 77 against, a fairly close margin that underscored a sharply divided Democratic caucus. Republicans mostly voted against both versions of the bill, lionizing local law enforcement as heroes in an attempt to characterize their votes as pro law enforcement.
“The problems of masks has to do with the federal government,” Rep. Greg Burtt (R-Cabot) said. “Since our state police are doing a stand-up job, I see no need to give them a directive at this time.”
The Senate could accept the House changes or a conference committee could be appointed to hash out the differences.
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